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PETITIONER: RAM DIAL AND OTHERS

       Vs.

RESPONDENT: THE STATE OF PUNJABWith connected Writ Petition

DATE OF JUDGMENT: 03/02/1965

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C. MUDHOLKAR, J.R. SIKRI, S.M.

CITATION:  1965 AIR 1518            1965 SCR  (2) 858  CITATOR INFO :  D          1968 SC1344  (10)

ACT: Punjab  Municipalities Act (111 of 1911), s. 14(e)-Power  of Government to remove member in public interest-No  provision for  hearing  Similar,  power  under  s.  16(1)  subject  to hearing-Whether  s. 14(e) violative of Art. 14-s. 14  giving power  to  Government to determine what it deemed to  be  in ’public interest’-Power whether unconstitutional.

HEADNOTE:  The  appellants,  who  had  been  elected  members  of  the Municipal  Committee,  Batala, challenged  the  Notification issued under s. 14(e) of the Punjab Municipalities Act  (III of 1911) directing their removal and disqualifying them from election  for  a period of one year.  It  was  contended  on their behalf that there were two provisions in the Act, i.e. s.  14(e)  and  s. 16(1) clauses (a) to (g)  under  which  a member could be removed in the public interest; and  whereas action  could only be taken under s. 16(1) after notice  and an  opportunity for a hearing to the member concerned  there was no such requirement in the case of s. 14(e).  This  sec- tion  was therefore hit by Article 14 and  consequently  the Notifications were invalid. HELD  : (per Wanchoo, Hidayatullah, Shah and Sikri, JJ.)  If the State Government intended to remove a person for any  of the  reasons given under s. 16(1) cases (a) to (g)-it  could take action under s. 14(e) and thus circumvent the provision in  s. 16(1) for a hearing.  The relevant part of  s.  14(e) entirely  covered  s. 16(1) but was more  drastic.   It  was therefore obviously discriminatory and violative of Art.  14 of the Constitution. [863 C-E] Shri Radeshayam Khare v. The State of Madhya Pradesh  [1959] S.C.R. 1440, distinguished. No assistance could be derived by the respondent State  from the  fact  that  under the proviso to s.  24(3),  the  State Government  had power to refuse to notify the election of  a person  elected on any of the grounds mentioned in s.  16(1) and there was no provision in this connection for notice and

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hearing  of the person elected.  Apart from the question  of the  constitutionality  of  this  provision,  there  was  no connection between the proviso to s. 24(3) and the provision contained in s. 14(e).  The proviso to s. 24(3) was complete in  itself  and  dealt  with a  situation  where  the  State Government  refused to notify the election of a  person  who had been elected.  Section 14(e) on the other hand  provided for the vacation of the seat of a member after he had  taken the  oath  of office.  Therefore  the  constitutionality  or otherwise of s. 14(e) would depend upon its contrast with s. 16(1) which also provided for the removal of a member.  [864 A-C Per  Mudholkar,  J.-The power conferred by s.  14  upon  the State  Government  to require that the seat  of  any  member shall be vacated "for any reason which it may deem to affect the  public interest" is unconstitutional.   The  expression ’public interest’ is of wide import and what would                             859 be   a  matter  which  is  in  the  public  interest   would necessarily depend upon the time and place and circumstances with  reference to which the consideration of  the  question arises.  But it is not a vague or indefinite ground.   There is  no  guidance in the Act for  determining  what  matters. though  not in public interest may yet be capable  of  being deemed to affect the public interest. [866 E-G; 867 A-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 300-302  of 1964. Appeals from the judgment and order dated March 16, 1962, of the  Punjab  High Court in Civil Writ Nos. 1194 to  1198  of 1961.                             WITH Writ Petition No. 126 of 1964. Under  Art. 32 of the Constitution of India for  enforcement of the fundamental rights. N.C.  Chatterjee,  V. S. Sawhney, S. S. Khanduja,  S.  K. Manchanda,  B. R. Kohli and Ganpat Rai, for  the  appellants (in the appeals) the petitioner (in the Writ Petition). J.   N. Kaushal, Advocate-General for the State of Punjab, B.   K.  Khanna and R. N. Sachthey, for the  respondent  (in all the appeals and the writ petition). The  Judgment of WANCHOO, HIDAYATULLAH, SHAH and  SIKRI  JJ. was  delivered  by WANCHOO, J. MUDHOLKAR J.  gave  an  inde- pendent judgment. Wanchoo, J. These three appeals are against the judgment  of the Punjab High Court on certificates granted by that Court. The writ petition has been filed by Uma Shankar appellant in this  Court and raises the same question as in the  appeals, namely,  whether S. 14(e) of the Punjab Municipalities  Act, No.  III  of 1911 (hereinafter referred to as  the  Act)  is unconstitutional  inasmuch  as it violates Art.  14  of  the Constitution.  The appeals and the writ    petition     will therefore be dealt with together.  We may add     that    we are  not concerned in these appeals with s. 14 (a)  and  (b) and that part of s. 14 (e) which provides for recall at  the request  of  the majority of the electors,  and  express  no opinion in that behalf. The  question  arises  in this  way.   The  appellants  were elected to the Municipal Committee, Batala in elections held on  January  22,  1961.  The result  of  the  elections  was notified  in the Punjab Government Gazette on  February  27, 1961.  The new members took oath on March 16, 1961 and began

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functioning   from   that   date.   On   August   4,   1961, notifications dated July 26, 1961 860 were  issued  in which it was stated that  the  Governor  of Punjab for reasons of public interest was pleased to  direct that the seats of the three appellants shall be vacated from the  date  of the publication of the  notifications  in  the State Gazette and to direct further that under sub-s. (3) of S. 16 of the Act, the three appellants shall be disqualified for  election  for  a  period of  one  year  from  the  date specified.   No notice was issued to the appellants to  show cause  why  their seats be not vacated and  no  hearing  was given to them before the action in question was taken by the Governor of Punjab.  The appellants’ case was that after the notifications  vacating their seats and  disqualifying  them had been issued, they came to know that these  notifications had  been issued on the basis of a resolution passed by  the out-going  municipal  committee  on March 13,  1961  to  the effect that the appellants had taken part in a demonstration on  March  10, 1961 and had broken some glass panes  of  the municipal  building.  The appellants’ further case was  that the  outgoing  municipal  committee had  been  dominated  by members  belonging to the Congress Party; but these  members had  mostly  been defeated in the fresh  elections  held  on January  22,  1961  and  it  was  in  consequence  that  the resolution was passed mala fide by these persons in order to harm the appellants.  A number of grounds were taken in  the petitions filed before the High Court challenging the  order of  the  Governor  of  Punjab.   Now  however  we  are  only concerned  with  one  ground,  namely,  that  the  provision contained in s. 14(e) was discriminatory and hit by Art.  14 of  the Constitution.  It appears however that  this  ground was not urged before the High Court and that is why the writ petition  has been filed in this Court specifically  raising this  point again, and thus in the present appeals  and  the writ  petition  we  are only  concerned  with  the  question whether  s. 14 (e) of the Act is bad as it violates Art.  14 of the Constitution. We  are  of opinion that the appeals must  succeed  on  this point. it is  necessary  in this connection to refer  to  s. 14(e), s. 16 and S. 24(3) of the Act.  The relevant part  of section  14(e)  with which we are  concerned  provides  that notwithstanding  anything  in  the  foregoing  sections   of Chapter  III, which deals with constitution  of  committees, appointment  and  election  of members, term  of  office  of members  of municipal committees, the State Government  may, at any time, for any reason which it may deem to affect  the public  interest, by notification, direct that the seat,  of any specified member, whether elected or appointed, shall be vacated  on a given date, and in such case, such seat  shall be 861 vacated accordingly, notwithstanding anything in the Act  or in  the rules made thereunder.  Further sub-s. (3) of s.  16 provides  that "a person whose seat has been  vacated  under the  provisions  of section 14 (e) may be  disqualified  for election for a period not exceeding five years." There is no provision for giving notice to a member against whom  action is  taken  under  s. 14(e) and he is not  ’entitled  to  any hearing before action is taken against him.  Further  action can be taken against a member for any reason which the State Government may deem to affect the public interest. Section  16  is another provision which gives power  to  the State  Government to remove any member of a  municipal  com- mittee.   This power is exercised for reasons given  in  cl.

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(a) to cl. (g) of s. 16 (1).  The proviso to s. 16 (1)  lays down that "before the State Government notifies the  removal of a member under this section, the reasons for his proposed removal  shall be communicated to the member concerned,  and he shall be given an opportunity of tendering an explanation in writing." The proviso therefore requires a hearing before the  State  Government takes action under s. 16  (1).   Sub- section (2) of S. 16 provides for disqualification and  says inter alia that any person removed under s. 16 (1) shall  be disqualified  for election for a period not  exceeding  five years.  There is a slight difference here inasmuch as  under this  provision  there  must be  disqualification  for  some period not exceeding five years, though if a members seat is vacated under s. 14 (e) the disqualification is entirely  in the   discretion  of  the  State  Government  and   is   not imperative.   That  however has no effect  on  the  question whether  the relevant part of s. 14 (e) is  unconstitutional as it is hit by Art. 14. Reference  may  now be made to s. 24 on which  reliance  has been  placed on behalf of the State.  Section 24  (1)  inter alia  prescribes  the  oath before a  member  can  begin  to function.   Section  24(2) lays down inter alia  that  if  a person omits or refuses to take the oath as provided in sub- s.  (1) within three months of the date of the  notification of  his election or within such further period as the  State Government  may  consider reasonable, his  election  becomes invalid.  Sub-section (3) of s.24  provides  inter  alia that where the election becomes invalid under sub-s. (2),  a fresh election shall be held.  The Proviso to sub-s. (3)  on which stress has been laid on behalf of the State lays  down inter  alia that the State Government may refuse  to  notify the election as member of any person who could be 862 removed from office by the State Government under any of the provisions  of  s.  16  or of  any  person  whom  the  State Government  for any reason which it may deem to  affect  the public interests may consider to be unfitted to be a  member of the committee, and upon such refusal the election of such person shall be void. The argument on behalf of the appellants is that s. 16 which gives power to the State Government to remove a member  pro- vides  that before that power can be exercised, reasons  for the removal have to be communicated to the member  concerned and  he  is  to be given an  opportunity  of  tendering  his explanation  in writing.  So it is urged that before  action can  be  taken to remove a member under s. 16,  the  proviso thereof requires that the member concerned is to be given  a hearing as provided therein.  The argument proceeds that the relevant  part of s. 14(e) also provides in effect  for  the removal  of a member though it actually says that  the  seat shall  be  vacated and that this removal has to be  for  any reason which in the opinion of the State Government  affects the  public  interest.   It is urged that  when  s.  16  (1) provides  for removal for reasons given in cls. (a) to  (g), that  removal  also is in the  public  interest.   Therefore there are two provisions in the Act for removal of a  member in  the public interest, one contained in s. 14(e)  and  the other  in  s. 16.  Where the State Government  takes  action under  s.  16(1), it has to give a hearing in terms  of  the proviso thereof to the member concerned, but if for  exactly the same reason the State Government chooses to take  action under  s.  14(e)  it need not give any  opportunity  to  the member to show cause why he should not be removed.   Further it  is  submitted that though s. 14 (e) may be  said  to  be wider inasmuch as cls. (a) to (g) may in a conceivable  case

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not  completely cover all that may be included in  the  term "public  interests", the removal for reasons given  in  cls. (a) to (g) in s. 16(1) is inpublic interest and  therefore what is contained in s.  16(1)  is certainly all covered  by s.  14(e).  In consequence there are two provisions  in  the Act for removing a member, one contained in s. 16 where  the State Government cannot remove the member without giving him a  hearing  in the manner provided in the proviso,  and  the other  in S. 14(e) where no hearing is to be given  and  the member is not even called upon to show cause.  Finally it is urged  that it depends entirely on the State  Government  to use  its  powers either under s. 14(e) or  under  s.  16(1), where   the  two  overlap  and  therefore  there  is   clear discrimination, as the provision in s. 14(e) is more drastic and does not even provide for hearing the member concerned. 863 We  are of opinion that these contentions on behalf  of  the appellants are correct.  There is no doubt that the  removal contemplated  in  s. 16(1) for reasons in cls.  (a)  to  (g) thereof,  as their content shows, is in the public  interest and  the proviso to s. 16(1) provides for a hearing  in  the manner indicated therein.  On the other hand s. 14(e)  which also  provides for removal in the public interest  makes  no provision for hearing the member to be removed.  Even if  s. 14  (e) is wider than s. 16(1), there is no doubt  that  all the  reasons  given  in cls. (a) to (g) are  in  the  public interest and therefore even if the State Government  intends to remove a person for any reasons given in cls. (a) to  (g) it  can take action under S. 14(e) and thus circumvent  ’the provisions contained in the proviso to s. 16(1) for hearing. Thus  there is no doubt that s. 14(e) which entirely  covers s.  16(1) is more drastic than s. 16(1) and unlike s.  16(1) makes  no  provision  for  even  calling  upon  the   member concerned  to  explain.  In this view of the  matter  it  is clear  that  for the same reasons the State  Government  may take  action  under s. 16(1) in which case it will  have  to give notice to the member concerned and take his explanation as provided in the proviso to s. 16(1); on the other hand it may  choose to take action under s. 14(e) in which  case  it need  not  give  any notice to the member  and  ask  for  an explanation from him.  This is obviously discriminatory  and therefore this part of s. 14(e) must be struck down as it is hit by Art. 14 of the Constitution. Reliance in this connection is placed on behalf of the State on the proviso to S. 24(3).  Section 24(1) to (3) inter alia provides for what happens where a member omits or refuses to take oath as provided therein.  Then comes the proviso to s. 24 (3), which gives power to the State Government to  refuse to  notify  the election of a person elected on any  of  the grounds  mentioned in s. 16(1).  It is not necessary for  us to decide whether the State Government can take action under this  proviso  read with s. 16(1) without giving  notice  as provided in the proviso to s. 16(1).  That question may have to  be  decided in a case where the State  Government  takes action  under this part of the proviso to s.  24(3)  without giving  notice to the person concerned under the proviso  to s.  16(1) and without giving him any opportunity of  hearing as  provided  therein.   The proviso  to  s.  24(3)  further provides that the State Government may refuse to notify  the name of any person elected if in its opinion he is unfit  to be  a  member of a municipal committee on ground  of  public interest.   It is urged that there is no provision  in  this con- 864 nection for notice and. hearing of the person elected.  That

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seems to be so, but again the question may arise in a proper case whether this provision would be constitutional.  We see no  connection  between  the proviso to s. 24  (3)  and  the provision contained in s. 14(e).  The proviso to s. 24(3) is complete  in  itself and deals with a  situation  where  the State Government refuses to notify the election of a  person who  has  been  elected.  Section 14(e) on  the  other  hand provides  for vacation of the seat of a member after he  has taken  the oath of office.  Therefore the  constitutionality or otherwise of S. 14(e) will depend upon its contrast  with s.  16 (1) which also provides for removal of a member.   As we  have already indicated on comparing the  two  provisions both  of  which provide for removal of a  member  in  public interest we find that the provision contained in s. 14(e) as compared  to the provision in s. 16(1) is more  drastic  and arbitrary  and  denies the member concerned  an  opportunity being heard as provided in s. 16(1) by the proviso  thereof. Consequently we are of opinion that this part of s. 14(e) is discriminatory  and must be struck down as  unconstitutional under Art. 14 of the Constitution. In this connection our attention is drawn to Shri  Radeshyam Khare v. The State of Madhya Pradesh(1) on which reliance is placed on behalf of the State.  In that case this Court  was concerned  with  ss.  53A  and 57  of  the  C.P.  and  Berar Municipalities  Act which to a certain extent were  held  to overlap.  The argument under Art. 14 did not really arise in that  case  because  the  two  provisions  dealt  with   two different situations.  Under s. 57 the State Government  had the  power  to  dissolve  a  committee  after  giving  it  a reasonable opportunity to furnish its explanation.  Under s. 53A   the  committee  was  not  dissolved,  but  the   State Government had the power to appoint an executive officer and confer upon him such powers of the committee, its president, vice-president  or secretary as it thought fit,  though  the reason  for  taking  action  under  s.  53A  (1)  apparently overlapped  the reasons for dissolving a committee under  s. 57(1).   Because of this difference in the scope of the  two provisions  contained in ss. 53A and 57, there could  be  no question of application of Art. 14 to that case. In  the  present case, however, s. 16(1)  which  deals  with removal of a member for reasons given in cls. (a) to (g)  is completely covered by s. 14(e) which deals with vacation  of a seat (1)  [1959] S. C. R. 1440.                             865 in  the  public  interest,  and it  is  open  to  the  State Government  either  to proceed under one  provision  or  the other  for exactly the same reasons.  One of the  provisions provides for notice and hearing while the other does not and is   therefore  more  drastic  and  arbitrary.    In   these circumstances there is in our opinion a clear discrimination in  view  of Art. 14 and the State  Government  cannot  take advantage of the decision in Shri Radeshyam Khare’s case(1). We therefore allow the appeals as well as the writ  petition and  declaring  s. 14(e) insofar as it gives  power  to  the State  Government to vacate a seat on the ground  of  public interest to be unconstitutional, set aside the notifications vacating  the seats of the appellants.  The direction as  to disqualification therefore also fails.  The appellants  will get  their  costs  from the State throughout.   One  set  of hearing fee.  No costs in the writ petition. Mudholkar,  J.  I  have read the  judgment  prepared  by  my brother Wanchoo and while I agree with him that the  appeals must  be allowed I would prefer to give my own  reasons  for that conclusion.

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The  appellants in these three appeals were elected  to  the Municipal Committee, Batala in the elections held on January 22,  1961.  On August 4, 1961, that is, after these  persons started  functioning as members of the  Municipal  Committee the Government of Punjab issued a notification under s.  14, cl.  (e) of the Punjab Municipalities Act, 1911 in which  it was stated that the Governor of Punjab for reasons of public interest  was  pleased  to direct that the  seats  of  these appellants shall be vacated from the date of publication  of the  notification  and  further stated that  they  would  be disqualified for election for a period of one year from  the date  specified.   This notification is  challenged  by  the appellants on the ground that the provisions contained in s. 14(e)   of  the  Act  under  which  it  was   issued   being discriminatory  were  rendered  void  by  Art.  14  of   the Constitution.               Section  14 of the Act as it now  stands  runs               thus               "Notwithstanding  anything  in  the  foregoing               sections of this chapter, the State Government               may  at any time for any reason which  it  may               deem to affect the public interests, or at the               request  of  a majority of  the  electors,  by               notification, direct-               (1)   [1959] S. C. R. 1440.               866               (a)   that   the  number  of  seats   on   any               committee shall be increased or reduced;               (b)   that any places on a committee which are               required  to  be filled by election  shall  be               filled by appointment, if a sufficient  number               of members has not been elected;               (e)   that the seat, of any specified  member,               whether elected or appointed, shall be vacated               on  a given date, and in such case, such  seat               shall be vacated accordingly,  notwithstanding               anything  in  this Act or in  the  rules  made               thereunder." It would be clear from a perusal of the above provision that powers  conferred  by S. 14 can be exercised  by  the  State Government  (i)  for  any reason which it may  deem  fit  to affect  the  public interest or (ii) at the request  of  the majority of the electors.  We are not concerned in this case with   the  second  circumstance  and,  therefore,   it   is unnecessary  to  consider whether that part of S.  14  which enables  the State Government to take action at the  request of a majority of electors is valid or not.  Similarly we are not  concerned in these appeals with the powers  exercisable by  the  State Government under cls. (a) and (b).   AR  that arises for consideration before us is whether the  conferral of power upon the State Government to require that the  seat of  any specified member of the Committee shall  be  vacated "for  any  reason  which it may deem to  affect  the  public interest" is valid.  The expression "public interest" is  of wide  import  and  what would be a matter which  is  in  the public  interest would necessarily depend upon the time  and place   and  circumstances  with  reference  to  which   the consideration of the question arises.  But it is not a vague or  indefinite ground, though the Act does not  define  what matters  would be regarded as being in the public  interest. It  would  seem  that all grounds set out in  s.  16,  which confers  upon the State Government the power to  remove  any member of a Committee and sets out a number of grounds  upon which  this could be done, would be in the public  interest. Section  14, however, apart from the fact that the power  it

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confers upon the State Government is not limited to  matters set, out under s. 16, confers upon the Government the  power to  determine not merely what is in the public interest  but also  what "for any reason which it may deem to  affect  the public interest." This would suggest that the power so                             867 conferred  would extend to matters which may not be  in  the public   interest.   For,  that  would  be  the  effect   of introducing the fiction created by the words "for any reason which  it  may deem".  There is no guidance in the  Act  for determining what matters, though not in public interest, may yet be capable of being deemed to be in the public  interest by  the State Government.  In the circumstances it  must  be held   that  the  power  which  conferred  upon  the   State Government  being  unguided is unconstitutional.   For  this reason  I hold that S. 14 in so far as it confers  power  on the  State  Government to require a seat of a  member  of  a committee to be vacated for any reason which it may deem  to affect  public  interest  as violative of  Art.  14  of  the Constitution  and,  therefore,  unconstitutional.   In   the result  each  of  the appeals is allowed with  costs  and  I accordingly do so. Appeals allowed. 868