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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.